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2d 446
aggregating $27,289.61, drawn by him upon his account had been paid by the
bank but not charged to his account. This action was instituted by appellant to
recover this additional amount from Kimsey. He first filed a general denial and
approximately seven months thereafter an amended answer and counterclaim
setting forth additional claimed credits in the amount of $33,680.51 and asked
judgment for $6,390.90. Trial was had to the court. It struck an account
between the parties and entered judgment for the Federal Deposit Insurance
Corporation for $8,230.30 together with interest, from which judgment this
appeal is prosecuted.
2
Appellant urges three assignments of error upon which it relies for reversal.
They are (1) that the account of July 11, 1949, constituted an account stated
between the parties, and the court therefore erred in considering evidence
relating to other transactions set out in the counterclaim; (2) that the court erred
with respect to the burden of proof and (3) that the judgment of the trial court is
contrary to the clear weight of the evidence.
An account stated is an account which has been examined and accepted by the
parties.1 An account cannot become an account stated with reference to a debt
payable on a contingency.2 Measured by this standard the account of July 11
did not constitute an account stated because it was executed upon the express
statement by appellant's agents that the execution did not estop Kimsey from
making further claims, provided he had evidence of additional credits to which
he was entitled. This contingency destroyed that finality in the statement of July
11 requisite to an account stated.
The most serious contention urged is that the judgment is contrary to the clear
weight of the evidence. Appellee's counterclaim consisted of 33 items totalling
$33,680.51, for which he claimed additional credits. All of these items with one
exception involved sums in excess of $1,000. The trial court gave careful
consideration to each and every item and made specific findings with respect
thereto. It found that Kimsey was entitled to additional credits totalling
$19,058.31 as an offset against the admitted liability of $27,298.61 asserted in
the complaint. The reason prompting the court's conclusion and its analysis of
the evidence are set out in the detailed findings of the court.
The record on appeal consisted of nearly 200 pages of testimony. To set out in
detail the evidence, which in our opinion supports the findings of the trial court,
would lead to an opinion of undue length and would add nothing of value either
to the opinion itself or to its value as a precedent to future litigation of a similar
kind. We, therefore, content ourselves with the statement that we have carefully
examined the entire record and are of the view that the court's findings of fact
and conclusions of law find ample support therein.
Notes:
1
1 Bouv. Law Dict., Rawle's Third Revision, p. 109; Toland v. Sprague, 12 Pet.
300, 37 U.S. 209, 234, 9 L.Ed. 1093; Owens v. Cohlman, 182 Okl. 380, 78 P.2d
292; Alexander v. Rich & Cartmill, 175 Okl. 406, 49 P.2d 767
Tuggle v. Minor, 76 Cal. 96, 18 P. 131; Van de Putte v. Texas Pac. Coal & Oil
Co., D.C., 35 F.Supp. 794; Bank of New York v. United States, 3 Cir., 170 F.2d
20